Nebraska Law Review
Volume 59 | Issue 4
Article 9
1980
The Establishment Clause and Its Application in
the Public Schools: Florey v. Sioux Falls School
District, 464 F. Supp. 911 (D.S.D. 1979), aff’d, 619
F.2d 1311 (8th Cir. 1980)
Michael W. Homer
University of Nebraska College of Law, [email protected]
Follow this and additional works at: http://digitalcommons.unl.edu/nlr
Recommended Citation
Michael W. Homer, The Establishment Clause and Its Application in the Public Schools: Florey v. Sioux Falls School District, 464 F. Supp.
911 (D.S.D. 1979), aff’d, 619 F.2d 1311 (8th Cir. 1980), 59 Neb. L. Rev. (1980)
Available at: http://digitalcommons.unl.edu/nlr/vol59/iss4/9
This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been
accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln.
Note
The Establishment Clause And Its
Application In The Public Schools
Florey v. Sioux Falls School District,464 F. Supp. 911
(D.S.D. 1979), affid, 619 F.2d 1311 (8th Cir. 1980).
I. INTRODUCTION
From the very inception of the United States government there
has been sharp division over the proper relationship between
church and state.' The first amendment, adopted shortly after the
passage of the Constitution, was an attempt by the initial Congress
to limit potential tensions between church and state by insuring
that "freedom of religion" would be protected in the new republic
and that a national church would never be established. However,
as society has become more complex and pluralistic, American
courts have interpreted these constitutional protections in ways
that would not have been contemplated two hundred years ago.
The most controversial United States Supreme Court decisions
interpreting the first amendment religion clauses have been those
involving public education. The most notable of these cases were
the Court's landmark prayer decisions 2 which held that prayer recitation and Bible reading in the public schools violated the establishment clause of the first amendment. When first announced,
these decisions 3 aroused the antipathy of many persons and were
condemned by several religious and political groups as anti-religious and anti-American. 4 The feelings of aversion on the part of
some have remained, and attempts to establish a constitutional
amendment reversing these Court decisions continue. 5 Because
1. See S. LIPSET, THE FIRST NEW NATION 81-83 (1963).
2. School Dist. of Abington v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370
U.S. 421 (1962).
3. Actually, the Schempp decision produced less public outcry than Engel. See
A. STOKES & I PFEFFER, CHURCH AND STATE IN TBE UNITED STATES 379-82
(rev. ed. 1964).
4. See P. BLANSHARD, RELIGION AND THE ScHoOLS: THE GREAT CONTRovERsY 5074 (1963); Kurland, The School Prayer Cases, in THE WALL BETWEEN CHURCH
AND STATE 142-46 (D. Oaks ed. 1963).
5. "The immediate reaction of Congress to [Engel v. Vitale] was the introduc-
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these efforts have been unsuccessful, prayers and Bible reading in
the public schools remain constitutionally prohibited.
Nevertheless, the precise boundaries of the establishment
clause are vague, 6 especially as the clause relates to public education. This vagueness has spawned challenges to the propriety of
allowing other "religious" activities in state schools. Florey v.
Sioux Falls School District,7 a recent well-publicized dispute in
the federal courts, demonstrates the continuing vitality and expanding scope of the church/state problem. In this litigation, the
parents of a public school student questioned the constitutionality
of Sioux Falls, South Dakota, school board rules allowing public
school celebration of holidays which have both religious and secular foundations. 8 The rules provided that music, 9 art, literature
6.
7.
8.
9.
tion of more than 50 constitutional amendments to override the decision or to
limit its impact upon a 'vital and sensitive spot' in our national life." 121
CONG. REc. 8162 (1975) (Remarks of Sen. Roth). A cursory examination of
the annual indexes to the Congressional Record since the "prayer decisions"
reveals that more than 400 proposals have been introduced in Congress to
enact a constitutional amendment to allow prayers in public schools or to
limit the appellate jurisdiction of the Supreme Court. CONG. REC. (Indexes
1963-1979). There have been a substantial number of such proposals introduced in Congress every year since 1963. Id. For an excellent discussion of
the opposing views concerning the prayer amendment, see Rice, The Prayer
Amendment" A Justification,24 S.C. L REv. 705 (1972), and Schwengel, The
PrayerAmendment: A Rebuttal, 24 S.C. L REv. 723 (1972). For a very recent
indication that the school prayer issue remains very controversial, see 66
A.B.A. J.436 (1980).
'This topic has remained more confused than any other major aspect of
American public law .... In the handful of leading cases which have arisen
from strikingly different visions of the role of religion in American Society the
court has failed to demonstrate a consistent line of development." Dixon, Religion, Schools, and The Open Society: A Socio-ConstitutionalIssue, 13 J.
PuB. LAw 288 (1964). "Few subjects [church-state relations] are more complex or as likely to provoke deep emotion. And there seems to be no ultimate
formulations or ultimate solutions .... Americans are constantly changing
their views about the proper province of the state." M. KoNvrrz, REuGIOUS
LIBERTY AsN CONSCIENCE at vii (1968). Part of the difficulty of the area is a
result of the courts failure to establish a definition of a 'religious activity."
See Note, Religious Holiday Observances in the Public Schools, 48 N.Y.U. L
REv. 1116, 1123 (1973); Note, Humanistic Values in the Public School Curriculum: Problemsin Definingan Appropriate"Wall of Separation",61 Nw. U. I
REv. 795, 798 (1966).
464 F. Supp. 911 (D.S.D. 1979), afid, 619 F.2d 1311 (8th Cir. 1980).
Id. It is not surprising after the outcome in Engel and Schempp that an establishment clause test case concerning the constitutionality of observing religious holidays in the schools arose. The issue was foreseen by a number of
legal commentators shortly after the "prayer cases." See, e.g., W. DOUGLAS,
THE BmLE AND THE SCHOOLS 11-12 (1966); L PFFFER, CHURc, STATE AND
FREEDOM 479-92 (rev. ed. 1967); A. STOKES & L PFEFFER, supra note 3, at 38284; Choper, Religion in Public Schools, 47 MINN. L REV. 329, 411-13 (1963);
Pfeffer, Court, Constitutionand Prayer,16 RUTGERS L REV. 735, 750 (1962).
Although there were other issues involved in the controversy, both the dis-
ESTABLISHMENT CLAUSE
1980]
1145
and drama having religious themes or basis could be used as
teaching aids during the holiday celebrations of Christmas, Easter,
Passover, Hannukah, St. Valentine's Day, St. Patrick's Day,
Thanksgiving and Halloween. l0
This note will review the decisions of the district and circuit
courts and analyze several of the issues raised in this litigation.
Although both courts upheld the propriety of holiday observances
in dispute, it will be shown that despite the secular bases for the
"religious" activities permitted by the school board rules, they
may, under some foreseeable circumstances, violate constitutional
principles because of their more than remote and incidential religious effect" on the students, and their potential for creating divisiveness in the community by excessively entangling the state
with religion. 12 In order to establish a foundation for this discussion, it is first appropriate to review the history of the religion
clauses and examine the Supreme Court tests currently used to
protect the values embodied in the first amendment.
II.
THE HISTORY AND DEVELOPMENT OF THE
ESTABLISHMENT CLAUSE
The establishment clause is one of two clauses concerning religion contained in the first amendment. The relevant portion of the
amendment states that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof
.... "13 The first clause is referred to as the establishment clause
and the second as the free exercise clause. The establishment
clause "is a prohibition of government sponsorship of religion
which requires that government neither aid nor formally establish
a religion."' 4 The free exercise clause, on the other hand, "absotrict and circuit courts focused most of their analysis on the constitutionality
of students singing "religious" hymns in the public schools. The issue of
singing religious hymns in the schools had been the subject of litigation in
various state courts which struggled with the propriety of prayer, Bible reading and singing of such hymns in the classroom before Engel and Schempp.
See W. GiurrHxs, RELGIoN, TnE CouRTs, AND THE PuBUc ScHooLs 1-92
10.
11.
12.
13.
14.
(1966). A Florida court examined the hymn issue in a context similar to
Florey. See Chamberlain v. Dade County Bd. of Pub. Instruction, 17 Fla.
Supp. 183 (Cir. Ct. 1961), aff'd, 143 So. 2d 21 (Fla. 1962), vacated,374 U.S. 487
(1963), modified, 171 So. 2d 535 (Fla. 1965).
The controversy in Florey concerns rules one, three and four of the Sioux
Falls School District's Citizens Committee, charged with the responsibility of
establishing guidelines relative to Christmas observances by the public
schools. See notes 47-54 & accompanying text infra.
See notes 93-118 & accompanying text infra.
See notes 119-30 & accompanying text infra.
U.S. CONST. amend. L
J. NowAr, R. ROTUNDA & J. YOUNG, CONSTrrUTIONAL LAw 850 (1978).
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[Vol. 59:1143
lutely prohibits the proscription of any religious belief by the government. Additionally, it requires that the government make some
accommodation for the practice of religious beliefs when it pursues ends which incidentally burden religious practices."' 5 A further difference between the two clauses is that:
"The
Establishment Clause, unlike the Free Exercise Clause, does not
depend on any showing of direct governmental compulsion and is
violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving
individuals or not. ' 16 There is also "a natural antagonism between
a command not to establish religion and a command not to inhibit
its practice ....
leav[ing] the Court with having to choose between competing values in religion cases. The general guide here
is the concept of 'neutrality.' ",17
Students of constitutional history recognize that at least three
different philosophies influenced those who ratified the first
amendment's religion clauses. Some viewed them as a barrier of
protection against "the dread of worldly corruptions which might
consume the churches if sturdy fences against the wilderness were
not maintained."' 8 Since the Bill of Rights, when passed, only applied against actions taken by the federal government, 19 several
states hoped that the amendment would protect their established
religions from federal interference. 20 Those with close religious
ties would apparently not have objected to "federal government
15. Id. at 871.
16. Engel v. Vitale, 370 U.S. 421, 430 (1962). See also School Dist. of Abington v.
Schempp, 374 U.S. 203, 223 (1963).
17. J. NowAK, R. ROTUNDA & J. YOUNG, supra note 14, at 849.
18. M. HOwE, THE GARDEN AND THE WLDERNESs 6 (1965). This view was espoused by Roger Williams.
19. It was not until 150 years after the ratification of the Bill of Rights that the
religion clauses of the first amendment were made applicable to the states
through the fourteenth amendment's due process clause. Everson v. Board
of Educ., 330 U.S. 1 (1947) (establishment clause applied to the states);
Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise clause applied to
the states).
20. J. NOwAx, P. ROTUNDA & J. YOUNG, supra note 14, at 850.
The amendment was proposed by James Madison on June 8, 1789, in
the House of Representatives. It then read, in part:
The civil rights of none shall be abridged on account of religious
belief or worship, nor shall any national religion be established,
nor shall the full and equal rights of conscience be in any manner,
or on any pretext, infringed. (Emphasis added.) I Annals of Congress 434.
We are told that Madison added the word 'national' to meet the
scruples of states which then had an established church.
McGowen v. Maryland, 366 U.S. 420, 440 (1960). However
[T]he First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the
1980]
ESTABLISHMENT CLAUSE
1147
aid to all religions on an equal basis."' 21 Others, sharing the views
of Jefferson, saw the amendment's purpose as political. In effect,
the amendment protected the state against any encroachment
which might be made upon it by organized religion. 22 "Jefferson's
total concern obviously included a deep anxiety that the liberties
of individuals would be endangered if a wall of separation did not
stand between them and the state." 23 A third view of the amendment's intended impact was held by Madison, the drafter of the
amendment. He envisioned that its impact would be to protect
24
both church and government from encroachment by the other.
Determining the application of the first amendment to modern
circumstances is therefore made very difficult because the motivations behind its passage were so varied.25 Additionally, the ratifiers themselves could not have foreseen the range of difficult
26
questions raised under the first amendment today.
Interpretation of the establishment clause by the United States
Supreme Court did not begin until the twentieth century. 27 Despite the diverse philosophical underpinnings of the amendment,
the Supreme Court has often attempted to justify its decisions by
emphasizing the Jeffersonion notion of separatism and the preven28
Most of its
tion of religious encroachment on the government.
21.
22.
23.
24.
25.
26.
27.
28.
Amendment a 'broad interpretation... in light of its history and the
evils it was designed forever to suppress. . ..'
Id. at 441-42 (quoting Everson v. Board of Educ., 330 U.S. 1, 14-15 (1946)).
J. NowAir, R. ROTUNDA & J.YOUNG, supra note 14, at 850.
M. HowE, supra note 18, at 7.
Id. at 6.
I. TRIBE, AMEICuAN CONSTrrUmONAL LAw 817 (1978).
J. NowAm, R. ROTUNDA & J. YOUNG, supra note 14, at 849-50.
We live in a much more complex and pluralistic society than that of our constitutional fathers. The Supreme Court has recognized that the changing values of society often impact on the way in which constitutional provisions are
interpreted. See, e.g., Harper v. Virginia Bd. of Election, 383 U.S. 663, 669
(1961). Florey is an example of a controversy which would not have been
anticipated by the drafters of the first amendment. Since that time, however,
the Supreme Court has attempted to adapt what it perceives as the establishment clause values to changing societal mores.
J. Nowmc, R. ROTUNDA & J. YOUNG, supra note 14, at 851.
See M. HowE, supra note 18, at 10-15. Howe has criticized the Supreme
Court's attempt to evaluate the meaning of the first amendment from the perspective of only one of the philosophies used to justify it at the time of its
ratification. He noted that the Court
has failed sufficiently to recognize, I think, that the rule of separation
was no less a postulate of faith than it was an axiom of doubt. If one
is to respect the realities of history in formulating rules of constitutional law, it is not as easy as the Court has pretended it to be to cast
out the theology of the First Amendment.
Id. at 10. He also asserted that "the Supreme Court, by pretending that the
American principle of separation is predominantly Jeffersonian and by purporting to outlaw even those aids to religion which do not affect religious lib-
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decisions concerning this clause have involved education and fall
within one of two general categories. 29 The first line of Supreme
Court cases involves the validity of certain types of aid to religious
institutions by the state. A second group concerns the propriety of
certain activities in the public schools, such as prayer or Bible
reading. The Court has developed a three-tier test to determine
whether such conduct or aid violates the establishment clause.
"First, the statute must have a secular legislative purpose; second,
its principal or primary effect must be one that neither advances
nor inhibits religion; ... finally, the statute must not foster 'an excessive government entanglement with religion.' "30
The first two tiers of the test were employed in McGowen v.
Maryland,3 1 and later refined in School District of Abington v.
Schempp.32 In McGowen, the Court held that state legislation imposing Sunday closing did not violate the establishment clause
even though it was originally enacted because of religious motivations: "[T] he 'Establishment' Clause does not ban federal or state
regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. ' 33 The
Court found the law valid since the "present purpose and effect of
...
[Sunday closing laws] ... is to provide a uniform day of rest
29.
30.
31.
32.
33.
erties, seems to have endorsed a govenmental policy aimed at the elimination
of defacto establishments." Id. at 12. Another commentator on the origins of
the first amendment has argued that a state day of fasting and prayer which
was proposed and enacted in Virginia by Jefferson in 1774 and by Madison in
1785 would not pass the current Supreme Court test regarding violations of
the establishment clause even though its authors apparently did not consider
such an action by a "state" government to be contrary to the values subsequently advanced by the first amendment. He noted that the "wall of separation" metaphor .articulated later by Jefferson was meant to limit only the
federal government. He also has pointed out that "Jefferson planned to include religious teachings in the University of Virginia's curriculum in a way
calculated to encourage morality and a belief in God while at the same time
avoiding a preferential establishment of one sect's belief over those of another." Comment, Jefferson and The Church-State Wall: A HistoricalExaminationof the Man and the Metaphor, 1978 B.Y.U. L. REv. 645, 669. The author
maintained that such actions taken by Jefferson and Madison demonstrate
that the establishment clause was not intended to completely separate religion and religious values from the public sector. He also argued that "incorporation of the establishment clause through the fourteenth amendment...
[is perhaps not historically justified since] . . . the original intent of the
clause seems to have been to deny federal authority over state-level establishment-of-religion questions." Id. at 673 n.127.
Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 772
(1973).
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citations omitted).
366 U.S. 420 (1961).
374 U.S. 203 (1963).
366 U.S. at 442 (emphasis added).
1980]
ESTABLISHMENT CLAUSE
1149
for all citizens."34
Prior to Schempp, the Court in Engel v. Vitale35 had held that
the use of non-denominational prayers written by school officials
violated the establishment clause. But the Engel Court failed to
enunciate a clear standard of what constituted an establishment
clause violation. 36 In Schempp the issue was whether recitation of
the Lord's Prayer or other Bible readings in public schools violated
the establishment clause. Mr. Justice Clark, writing for the Court,
stated that in order to "withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."37 In effect,
the government must remain neutral and refrain from any involvement with religion, or its actions will be invalidated. Thus, the
Court held that since prayer recitation and Bible reading in the
schools are examples of exercises intended as religious activities
34. Id. at 445.
35. 370 U.S. 421 (1962). In Engel, the Court held that government "is without
power to prescribe by law any particular form of prayer which is to be used as
an official prayer in carrying on any program of governmentally sponsored
religious activity." Id. at 430. Justice Black, writing for the majority, characterized the motivations of those who enacted the first amendment as an unwillingness "to let the content of their prayers and their privilege of praying
whenever they pleased be influenced by the ballot box." Id. at 429. However,
the Court did recognize that certain manifestations of belief in God are not
proscribed by the first amendment, such as:
reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially
espoused anthems which include the composer's professions of faith
in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial
occasions bear no true resemblance to the unquestioned religious exercise that the [s]tate ... has sponsored in this instance.
Id. at 435 n. 21.
36. Before Schempp and McGowen, the Supreme Court had not established a
specific test for determining the validity of governmental action challenged
under the establishment clause. See generally J. NowAx, R. ROTUNDA & J.
YOUNG, supra note 14, at 850-71. In Everson v. Board of Educ., 330 U.S. 1
(1947), the Court upheld a public school program which reimbursed parents
of children attending both public and sectarian schools for the amount of
money they spent on the transportation of their child to and from school
This governmental action was not viewed as constituting aid to religion because it was given to public and non-public students alike, without regard to
religion. In McCollum v. Board of Educ., 333 U.S. 203 (1948), the Court held
that religious instruction in public schools which was conducted on public
property and during the regular school day by religious instructors not salaried by the school district was unconstitutional because it aided religious
groups. However, a release time program in which students were released
from their regular school program to attend religious instruction off public
property was held to be constitutional just four years later in Zorach v. Clauson, 343 U.S. 306 (1952).
37. 374 U.S. at 222 (citations omitted).
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religion, they offend the principles of the estaband which advance
38
lishment clause.
The fact that participating in the prayers and Bible reading was
voluntary was held to be no bar to a holding of unconstitutionality.
In addition, the Court noted that
it is no defense to urge that the religious practices here may be relatively
minor encroachments on the First Amendment. The breach of neutrality
that is today a trickling stream may all too soon become a raging torrent
'it is proper to take alarm at the first experiand, in the words of Madison,
39
ment of our liberties.'
The Court also rejected the argument that its decision would result
in establishing a "religion of secularism." It noted that objective
teaching about religion in the public classroom would not be affected:
[0] ne's education is not complete without a study of comparative religion
or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its
literary and historic qualities. Nothing we have said here indicates that
such study of the Bible or of religion, when presented objectively as part
of a secular program of education, may not be effected consistently with
the First Amendment. But the exercises here do not fall into those categories. They are religion exercises, required by the States in violation of the
maintain strict
command of the First Amendment that the Government
4°
neutrality, neither aiding nor opposing religion.
The three-tiered test was first fully articulated by the Court in
Lemon v. Kurtzman,41 when the purpose and effect tiers were
combined with an excessive entanglement test. Lemon involved a
state attempt to subsidize parochial schools by supplementing the
salaries of teachers who taught secular subjects. Although the
Court accepted the argument that the purpose of the program was
secular,42 it did not specifically rule on whether or not its effect was
secular.43 Instead, it held that the program was unconstitutional
because it fostered an "excessive entanglement" between the state
and religion. The factors used by the Court to determine that
there was an excessive entanglement were: (1) The character and
purpose of institution benefited (a church sponsored school);44 (2)
the nature of the aid (economic support to teachers under supervision of religious authorities);45 and (3) the resulting relationship
38.
39.
40.
41.
42.
43.
44.
45.
Id. at 223.
Id. at 225.
Id.
403 U.S. 602 (1971). The "excessive entanglement" approach to resolving
questions arising under the first amendment was first enunciated in Walz v.
Tax Commission, 397 U.S. 664 (1970).
403 U.S. at 613-14.
Id.
Id. at 615.
Id. at 616-17. This type of aid was distinguished from secular subject textbooks, whose "content is ascertainable, but a teacher's handling of a subject
19801
ESTABLISHMENT CLAUSE
between government and religious authorities (continuing state
surveillance to insure that teachers "segregate their religious belief from their secular educational responsibilities"). 46
Since Lemon, all disputes involving establishment clause challenges have been evaluated under the three-tiered test of purpose,
effect, and excessive entanglement. Each of the three tests must
be satisfied in order for the challenged conduct to survive a constitutional attack. Florey presented the federal courts a further opportunity to probe the limits of the establishment clause in public
education.
I. THE FACTS OF FLOREY
During the 1977 Christmas season, the Sioux Falls School District received a complaint from a student's parents stating that
Christmas programs performed by two kindergarten classes in the
district were "replete with religious content."47 In response the
Superintendent of Schools "set up a citizen's committee to study
the issue of church and state in relationship to school district functions."4 The committee formulated a policy statement and rules
which were apconcerning the celebration of religious holidays
49
proved by the school board in December, 1978.
The policy adopted by the school board clearly stated that "no
46.
47.
48.
49.
is not. We cannot ignore the danger that a teacher under religious control
and discipline poses to the separation of the religious from the purely secular
aspects of precollege education." Id. at 617.
Id. at 619-20.
Florey v. Sioux Falls School Dist., 464 F. Supp. 911, 912 (D.S.D. 1979).
Id. at 913.
Id. The complete text of the challenged rules were:
1. The several holidays throughout the year which have a religious
and a secular basis may be observed in the public schools.
2. The historical and contemporary values and the origin of religious holidays may be explained in an unbiased and objective
manner without sectarian indoctrination.
3. Music, art, literature and drama having religious themes or basis
are permitted as part of the curriculum for school-sponsored activities and programs if presented in a prudent and objective
manner and as a traditional part of the cultural and religious heritage of the particular holiday.
4. The use of religious symbols such as a cross, menorah, crescent,
Star of David, creche, symbols of Native American religions or
other symbols that are a part of a religious holiday is permitted as
a teaching aid or resource provided such symbols are displayed
as an example of the cultural and religious heritage of the holiday
and are temporary in nature. Among these holidays are included
Christmas, Easter, Passover, Hannukah, St. Valentine's Day, St.
Patrick's Day, Thanksgiving and Halloween.
5. The school district's calendar should be prepared so as to minimize conflicts with religious holidays of all faiths.
Id. at 918.
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religious belief or non-belief should be promoted by the school district or its employees, and none should be disparaged."5 0 The purpose of the rules was the advancement of the "students'
knowledge and appreciation of the role that our religious heritage
has played in the social, cultural and historical development of civilization." 51 The most controversial rules permitted the celebration of holidays with both a secular and religious basis by the
objective presentation of music, art, literature, and drama having
religious themes, and the display of religious symbols on a temporary basis. 52 Dissatisfied with the results of the committee's deliberations, the original complainant and others filed suit in federal
district court on November 30, 1978, for declaratory and injunctive
relief.5 3 The plaintiffs alleged that the policy and rules formulated
by the citizens' committee and adopted by the school board violated the establishment clause of the first amendment of the
United States Constitution. The court denied a motion for a preliminary injunction and the trial did not take place until after the
Christmas season, during which the new policy and rules were applied by the school district.5
IV.
THE DISTRICT COURT OPINION
The district court evaluated the rules concerning the presentation of music, art, literature, and drama (rule 3), and the use of
religious symbols (rule 4), under the established three-tiered test.
The court observed that since the rule stating which holidays may
be celebrated in school (rule 1) "appears to distinguish between
holidays with a purely religious significance, . . .and those holidays... with both a religious and secular basis .... [p]laintiff's
Rule 1 is unconstitutionally overbroad need not be
argument that
55
considered."
Regarding the purpose of rule 3, the court asserted that even
though some Christmas hymns do have religious origins, the
school board's purpose for including them in school-sponsored
programs is not necessarily to advance religion.5 6 The court noted
that:
much of our artistic tradition has a religious origin .... [but] has acquired a significance which is no longer confined to the religious sphere of
50.
51.
52.
53.
54.
55.
56.
Id.
Id.
See note 49 supra.
464 F. Supp. at 911.
Id. at 913-14.
Id. at 915.
Id. at 916. The Court cited supporting dicta for this from a concurring opinion
in McCollum v. Board of Educ., 333 U.S. 203 (1948), in which Justice Jackson
noted the educational value of sacred music.
1980]
ESTABLISHMENT CLAUSE
life. It has become integrated into our national culture and heritage. To
allow students only to study and not to perform such works when they
significance would
have developed an independent secular and 5artistic
7
give students a truncated view of our culture.
The court also found that "[t] he purpose of the policy and rules is
to expose and involve the student in the full spectrum of our Western musical tradition. Music is selected for its inherent musical
value. Performance is an intrinsic part of a musical education." 58
Concerning the "effect" of singing Christmas hymns in the public schools, the court noted that since "Christmas music with religious content has been assimilated into our culture,... the
performance of Christmas music with religious content does not
constitute a religious activity per se."5 9 The court pointed out that
even though particular students may have religious experiences
during the presentation of Christmas hymns sung at school programs, rule 3 does not necessarily fail the effect test since "if
materials with religious content were presented to these same inthey would
dividuals in the classroom in a totally secular manner,
'6 0
still attach a similar religious meaning to them.
The court evaluated rules 3 and 4 together under the excessive
entanglement test, using the same three factors considered in
Lemon.6 ' Relative to the nature of the aid and the institution benefited, the court indicated that:
It is highly speculative to assert that benefit will accrue to any religious
institution or religion through the policy and rules adopted by the Sioux
Falls Board of Education and the programs presented in conformance
with those rules.
...[TIhis Court cannot find that the school system provides any aid to
religion or to any religious institution through its policy and rules. Any
aid which the school system provides to religion through the implementa-
tion of its policy and rules could also easily beprovided by objective study
of religion and religious art in the classroom.2
The court also found that "the policy, rules and implementation
thereof do not result in any particular relationship between the
school and any religious authority." 63 As a result, the court could
find no excessive'entanglement between the Sioux Falls School
District and religion.
The court also held that rule 4, concerning the use of religious
symbols, did not violate the establishment clause: The purpose of
the rule is educational because the religious symbols could only be
57.
58.
59.
60.
61.
62.
63.
464 F. Supp. at 915-16 (emphasis in the original).
Id. at 916.
Id. (emphasis in the original).
Id.
See notes 44-46 & accompanying text supra.
464 F. Supp. at 917.
Id. at 918 (emphasis in the original).
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displayed temporarily "to show examples of the religious and cultural heritage of the holiday. ' 64 The effect of the rule would not be
to promote religion as long as the policies are carried out properly,
"have the
and to hold the rule unconstitutional ipso facto would
'65
effect of demonstrating a hostility towards religion.
V.
CIRCUIT COURT OPINION
The Eighth Circuit Court of Appeals affirmed the district court
decision by a two-to-one majority.66 The court analyzed the claims
of the appellants within the framework of the three-tiered establishment clause test in great detail. The circuit court also found
that the rule permitting the observance of "religious" holidays
does not have a religious purpose since it "limits observation of
'67
holidays to those that have both a religious and a secular basis.
The court contrasted the use of music, art, literature, drama and
religious symbols with the use of prayers and Bible reading in the
schools. It noted that the activities would be permitted under the
School District rules only if" 'presented in a prudent and objective
manner and as a traditional part of the particular holiday'. . . . as
'a teaching aid or resource,' "68 whereas prayer is "by its very nature ... a religious exercise. '69 The court also found that the rules
do not have the "effect" of advancing or inhibiting religion. It believed that the effect of the rules was educational rather than religious. 70 Furthermore, the appellate court specifically approved the
district court's finding that "much of the art, literature and music
associated with traditional holidays, particularly Christmas, has
'acquired a significance which is no longer confined to the religious
sphere of life.' "71 Thus, although the rules might have some relifelt that the "principalor primary effect"
gious effect, the majority
72
would be secular.
The circuit court felt that the excessive entanglement prong
had very little application to the facts of Florey. It noted that "the
Supreme Court cases cited by the appellants in support of the 'entanglement' test deal with governmental aid to sectarian institutions, not with the permissible scope of activity in the public
schools. ' 73 According to the court, the difference between those
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
Id. at 916.
Id. at 917.
Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th Cir. 1980).
Id. at 1314 (emphasis in the original).
Id.
Id.
Id. at 1316.
Id.
Id. at 1317 (emphasis in original).
Id. at 1318.
1980]
ESTABLISHMENT CLAUSE
1155
cases and this case, is "a situation in which the state is involving
itself with a concededly religious activity or institution... [and
one in which] the school district is called upon to determine
whether a given activity is religious." 74 The court concluded that
the rules did not entangle the schools in religion, but "provide the
means7 5to ensure that the district steers clear of religious exercises."
VI. ANALYSIS
Although Sioux Falls School District's rules regarding the celebration of religious holidays were held to be constitutional, both
courts recognized that the issues involved in the case were difficult
to resolve.7 6 Furthermore, the appellate court limited its decision
"to the constitutionality of the rules on their face." 77 Thus, it is
likely that holiday celebrations in public schools will remain a
highly controversial subject resulting in further litigation. Despite
the difficulties and uncertainties which linger after Florey, an analysis of the case provides a sharper focus on the competing interests and values advocated by both sides in the controversy.
A.
Purpose Test
As previously noted, the purpose test requires that each rule
have a secular purpose. This standard is leniently applied because
"if a purpose were to be classified as non-secular simply because it
coincided with the beliefs of one religion or took its origin from
another, virtually nothing that government does would be acceptable. '78 Thus, "the Court will usually find in the statutory language
or elsewhere a secular purpose for a challenged law, and will then
move on to consideration of the remaining two criteria." 79 Thus,
the district court and the circuit court in Florey both referred to
the rules' language in discussing the secular purpose of education
74. Id.
75. Id. The court also held that the rules did not violate the free exercise clause.
This issue was not addressed in the trial or in the district court opinion. Id. at
1318 n.7.
76. The district court noted that Floreywas "an extremely close question of law."
464 F. Supp. at 914. The Circuit Court of Appeals recognized
that this opinion affirming the district court will not resolve for all
times, places or circumstances the question of when Christmas
carols, or other music or drama having religious themes, can be sung
or performed by students in elementary and secondary schools without offending the First Amendment.
619 F.2d at 1319.
77. 619 F.2d at 1313.
78. L. TRmE, supra note 24, at 835.
79. Id. at 836.
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which they found to underlie the rules.8 0 The circuit court dismissed the appellants' argument that the legislative history of rule
1 revealed that its purpose was contrary to the requirements of the
purpose test.8 1 Although the school board's rejection of an amendment which would have allowed only the observance of the secular
aspects of holidays does seem suspicious, the court was probably
correct in disregarding this fact without more evidence that the
rules were intended to promote religion, especially in light of the
school board's statement of policy that the purpose of the rules
was "to advance the students' knowledge and appreciation of the
role that our religious heritage has played ....-82 However, the
dissent viewed "the school board's rejection of the proposed 'secular aspects only' amendment as indicative of a purpose to permit
more than the study (including performance when appropriate) of
religion, subjects with religious content or significance and religious traditions. ' 83 The dissenting judge also stated that "[t] o the
extent the policy and rules focus only on religious holidays, I
and rules unconstitutionally operate as a
would find the policy '84
preference of religion.
If it is true, as the school board claims, that the rules were not
enacted for religious purposes, but were "intended to insure that
only holidays with secular purposes be observed in the public
school," 85 then it might be asked what the board defined as a secular basis.8 6 It is questionable whether some of the holidays allowed to be observed, such as Hanukah and Passover, have both
religious and secular bases. 87 Without a secular basis, it is doubt80. 464 F. Supp. at 915-16; 619 F.2d at 1314.
81. 619 F.2d at 1315. The appellants noted that during the initial drafting of the
rules a committee member requested that rule 1 include the following language: "Such observances shall be limited to the secular aspects of the holidays." Brief for Appellants at 5, Florey v. Sioux Falls School Dist., 619 F.2d
1311 (8th Cir. 1980). Since the committee rejected this proposal, the appellants argued that the purpose of "its enactment was motivated by religious
considerations" and thus violates the purpose test. Id. at 26.
82. 464 F. Supp. at 918.
83. 619 F.2d at 1323 (McMillian, J., dissenting).
84. Id. at 1324.
85. Brief for Appellees at 14, Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th
Cir. 1980).
86. The dissenting judge also asked this question and then noted that: "Secular
basis presumably refers to something other than religiously neutral symbols
(i.e. snowmen and jingle bells instead of Nativity scenes and the Star of Bethlehem), association with majoritarian (Christian) cultural traditions, commercialization, or observance contemporaneous with Christian religious
holidays." Florey v. Sioux Falls School Dist., 619 F.2d at 1325 (McMillian, J.,
dissenting).
In an attempt to achieve a means of balance, some schools schedule
87.
Hanukkah music and celebrations together with their Christmas programs, and have declared participation in either or both programs
1980]
ESTABLISHMENT CLAUSE
1157
ful under Schempp that the school should be sponsoring programs
to promote their observance because such observation would come
perilously close to a religious activity. Similarly, the observation of
the religious portion of holidays with both secular and religious bases, such as Christmas and Easter, would offend the Schempp
standard if the program is intended to promote a religious dogma.
Whether school activities observing Hanukah or Christmas should
be characterized as religious or educational depends at least to
some extent on whether they are meant to achieve educational
goals.
The dissent did not "understand how the observance of religious holidays promotes these secular goals," 88 since the holidays
observed are those with which a majority of the students already
have a religious affiliation. He argued that "observance of the holidays of religions less familiar to most American public school children than either Christian or Jewish holidays would seem more
likely to increase student knowledge and promote religious tolerance." 89
At first blush, the propriety of using religious symbols seems to
fit neatly within the Schempp dicta which allows objective education about religion in the classroom. The restriction of the symbols
to temporary display during the relevant holiday season seems to
support the school board's contention that the purpose of their display is not religious but, instead, an effort to "objectively ... explain the meaning imparted to a religious symbol by the relevant
sect." 90 However, one might question how realistic such a purpose
is when implemented in a classroom of kindergarteners who arguably have a difficult time distinguishing between a religious feelvoluntary. This solution ignores the basic problem--the unconstitutionality of any religious activity in the school--and further overlooks
the rights of nonreligious children to be free from the pressures of
voluntary participation.
Note, N.Y.U. L. REV. supra note 6, at 1126. See also A. STOKES &L PFEFFEE,
supra note 3, at 383; L. PFEFFEi, supra note 8, at 493-96. Pfeffer noted that
"[f] or a while the joint holiday observance proposal was popular among Jewish organizations. More recently, however, practically all the major Jewish
organizations have changed their views and today oppose such programs."
Id. at 494.
88. 619 F.2d at 1324 (McMillian, J., dissenting) (emphasis in original).
89. Id. at 1324. But see note 115 &accompanying text infra. The dissent in Florey
also noted that
[t]
he school district can advance student knowledge and tolerance of
religious diversity as effectively by non religious means, that is,
through the study of comparative religions or as part of the history or
social studies curriculum. In any case, the observance of religious
holidays as a means of accomplishing the secular goals of knowledge
and tolerance clearly discriminates against non-belief.
619 F.2d at 1324 (McMillian, J., dissenting) (emphasis in original).
90. Brief for Appellees at 32.
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ing and the secular meaning of the symbols. 91 The appellants
argued that the "defendants know a student who sits next to a
creche for three days during the Christmas season is likely to be
affected by the sacred message inherent in that symbol. ' 92 The
difficulty of proving such an assertion of motive is one of the reasons why governmental actions will, as noted, usually pass the
purpose test as long as they have "some" secular purpose.
B.
Effect Test
The effect test requires that "if the essential effect of the government's action is to influence-either positively or negativelythe pursuit of a religious tradition or the expression of a religious
belief, it should be struck down as violative ... of the establishment clause if positive. 93s The Supreme Court has been particularly sensitive to religious effect in schools, 94 both public and
parochial. In relation to public schools the Court has eliminated
prayers, 95 Bible reading,96 and religious classes on the school
premises. 97 Similarly, the Court has refused to uphold programs
which provide government aid to parochial schools which might
result in additional religious instruction. 98 Thus schools are seen
"as laboratories for the shaping of values." 99
91. "The identification of the public schools with these religiously oriented mottoes, constantly in view of immature students with malleable minds and highest regard for the public school institution is likely to result in influencing or
compromising their religious beliefs." Choper, supra note 8, at 409. In contrast, the symbols in Florey would not be "constantly in view" but only temporarily during the relevant holiday.
92. Brief for Appellants at 50.
93. I TRIBE, supra note 24, at 839.
94.
Given these principal cases [McCollum, Engel and Schempp], it is
interesting to note that the Supreme Court has frequently expressed
the view that the establishment clause is not offended by opening
prayers in Congress, by inclusion of such mottos as "In God We
Trust" on United States coins or by the persistence of the ceremony
opening the Supreme Court's sessions with a phrase 'which invokes
the grace of God.'. . . This may reflect the judgement that, because
of their central and delicate role in American life, public schools
must be insulated from religious ceremony under the aegis of the
establishment clause even where no coercion can be shown, whereas
in other public forums free exercise values permit some accomodation of religious beliefs through brief, voluntary ceremonies.
Id. at 841 n.9.
95. School Dist. of Abington v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370
U.S. 421 (1962).
96. School Dist. of Abington v. Schempp, 374 U.S. 203 (1963).
97. McCollum v. Board of Educ., 333 U.S. 203 (1948).
98. Roemer v. Board of Pub. Works, 426 U.S. 736 (1976); Board of Educ. v. Allen,
392 U.S. 236 (1968).
99. L. TRmE, supra note 24, at 844.
1980]
1.
ESTABLISHMENT CLAUSE
1159
Traditionalversus UntraditionalChristmasHymns
The singing of Christmas carols with a religious message seems
to have been the "primary focal point of appellant's objections to
the rules."'0 0 The district court's decision that the effect of rule 3 is
primarily secular was based in part on its assumption that the
songs performed at school assemblies would be works which had
0
"developed an independant secular and artistic significance"'U
apart from their religious origin. This assumption was undermined by the appellants' revelation that much of the music
presented by the kindergarten students was arguably not secular
at all. They noted that many of the hymns sung in the program
were not ones which could be considered secularized' 02 and that
their presence in the program is an indication that the singing of
hymns in the schools is actually a religious activity. They argued
that Christmas hymns are nothing more than prayers set to music
and that when "they are presented in schools, they will have the
effect that they were originally designed to have-a religious effect-unless they are presented objectively as part of a secular
program of education."'0 3
The circuit court did not respond specifically to this argument.
It did indicate that the material allowed under the rules, "although
of religious origin, has taken on an independent meaning,"'U4 and
that "the study of religion is not forbidden."' 05 The court also
noted that "public performances may be a legitimate part of secular study,"'10 6 and that "study" is not the same thing as "observation.' 107 While it did not explain the presence of songs in the
previous year's program which were not popular or traditional
Christmas hymns, it is likely that the court considered the hymns
to be educationally relevant to an understanding of Christmas, and
100. Florey v. Sioux Falls School Dist., 619 F.2d at 1316 n.5.
101. 464 F. Supp. at 916.
102. Reply Brief for Appellants at 7. Some of the songs which arguably have not
"developed an independent secular and artistic significance" and have not
been widely "assimilated into our culture" are "So My Sheep May Safely
Graze," "Come Shepherds, Leave Your Flocks," "Angel Band," "The Baby
Boy," "What Shall We Name Him," "Winds Through the Olive Tree," "Follow
His Star," "Simple Birth" and many others. Appellants also argued that
"those hymns which might be characterized as having 'wide esposure' ('Silent Night,' '0, Come All Ye Faithful,' 'Joy to the World') were performed a
total of six times. In contrast, 'So My Sheep May Safely Graze' was itself
performed five times, and the other hymns listed above were performed
twenty-two times." Id. at 8.
103. Brief for Appellants at 35.
104. 619 F.2d at 1316.
105. Id.
106. Id.
107. Id.
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that their primary effect was therefore secular.108
This distinction between "traditional" and "untraditional"
Christmas hymns highlights the difficulty of this controversy. It is
difficult to articulate a reason why a song like "Silent Night"
should be allowed, while a less popular song with the same
message like "Come Shepherds Leave Your Flocks" should not.
Although "Silent Night" might be more universal, it does not follow that it will have any less of a religious effect on a student of
tender years than a more obscure song. Furthermore, making the
choice between appropriate and inappropriate hymns could contribute toward the type of religious strife the establishment clause
was intended to eliminate. 0 9
2. Singing in the Classroom versus Singing in Assemblies
Although the appellants were opposed to the singing of religious hymns in school assemblies, they maintained that such
songs could still be sung in the classroom for educational purposes. 110 This distinction is troublesome since the effect on the
students could easily be the same whether the songs were performed for the teacher in the classroom or for the parents in the
school auditorium. Additionally, it undermines the analogy between prayers and religious hymns: Prayers may not be said in
the classroom even if they are nondenominational or read directly
from the Bible. However, a prayer could conceivably be read and
studied as part of a comparative religions course without a significant religious effect. On the other hand, a religious hymn sung in
the classroom during a holiday season might have a greater religious effect on a child than would a single reading of a prayer from
a textbook."' In addition, classroom hymns would be more likely
to be sung repetitiously and thus committed to memory. Thus, the
district court's opinion that if "[m]aterials with religious content
were presented ... in the classroom in a totally secular manner"1 12 they would have the same religious meaning to the students as when presented in school-sponsored assembly is very
persuasive.
The school board argued that the singing of holiday hymns is
justified in both the classroom and at assemblies because performance in front of others is a part of one's education. However, the
See id. at 1317-18.
See note 129 & accompanying text infra.
Brief for Appellants at 29-30.
The position of the appellants---that singing Christmas hymns in the classroom is constitutional whereas singing the same hymns in a school assembly
should be unconstitutional-is supported by several commentators. See, e.g.,
Choper, .rupra note 8, at 413; Pfeffer, supra note 8, at 750.
112. 464 F. Supp. at 916.
108.
109.
110.
111.
1980]
ESTABLISHMENT CLAUSE
1161
line between education and religious indoctrination becomes very
blurred when the religious songs are performed by elementary
school students in observance of a holiday.
3.
The Age of the Children
If the primary effect is educational, the establishment clause
does not prohibit the public schools from teaching about religion
through "religious hymns." However, these courts did not consider that the children in Florey were young, impressionable and,
perhaps, unable to distinguish between religious teachings and
secular education, especially during "religious" holidays. For such
children, the primary effect may be the same lesson taught in Sunday School or something radically different from what is learned in
the synagogue. 1 3 If so, singing "religious" hymns in public
schools may not be a proper method of teaching about religious
holidays because of the potentially significant religious effect on
113. As previously noted, the Supreme Court has interpreted the establishment
clause quite literally in situations involving education, whereas in other factual settings it has been less protective. See note 94 supra. It is arguable that
elementary education is especially delicate and that the court should be vigilant in rigidly applying the establishment clause to cases involving children
in their first few years of public education. A different approach was articulated by the dissent in DeSpain v. DeKalb County Community School Dist.,
384 F.2d 836 (7th Cir. 1967), cert. denied,390 U.S. 906 (1968). DeSpain involved
an establishment clause challenge to a verse which was being recited by kindergarten students in Illinois before their morning snack. "We thank you for
the flowers so sweet; We thank you for the food we eat; We thank you for the
birds that sing We thank you for everything." 384 F.2d at 837. The majority
held that despite the school's claim that the verse was intended to create
good citizenship and thankfulness, it was a prayer and held it to be unconstitutional. The court recognized that the "verse was as innocuous as could be
insofar as constituting an imposition of religious tenants upon nonbelievers
. ..[but that] it is no defense to urge that the religious practices here may be
relatively minor encroachments on the First Amendment." Id. at 840 (quoting in part School Dist. of Abington v. Schempp, 374 U.S. at 225). However,
the dissenting judge argued thatthe verse which remained to be recited by the pupils,.. . undoubtedly reflects in their young minds the pleasant prospect of eating
... [and is] a vocal expression of their gratitude.... [T]his court
has no right to take on a burden... of establishing that a benefactor,
to whom each child feels he is speaking, is a deity.
iW]e are asked as a court to prohibit, not only what these
children are saying, but also what plaintiffs think the children are
thinking. Certainly thought is a matter varying with each child, be
he Christian, Jew, atheist or agnostic. One who seeks to convert a
child's supposed thought into a violation of the constitution of the
United States is placing a meaning on that historic doctrine which
would have surprised the founding fathers.
384 F.2d at 841 (Schnackenberg, J., dissenting) (emphasis in original).
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children. 114 Banning such songs would advance the Jeffersonian
value of protecting individuals from subtle religious indoctrination
by the state. Furthermore, even if participation in the holiday observations is voluntary, forcing a child to decline participation in
programs containing material inimical to his family's religious beliefs may have a detrimental effect on his educational advancement.1 15
One might ask what the impact would be if religious holiday
celebrations and Christmas hymns were banned from both the
classroom and the school-sponsored assembly. Would the damage
to the child's education be greater or less than the potentially detrimental effect of shaping the child's religious values, or the detrimental impact on children who decline to participate because of
their parents' religious beliefs? 116 The younger a child is, the more
reasonable it seems that education through singing Christmas
hymns in public schools could be postponed to a time when a child
is able to more fully appreciate the difference between the religious and secular significance of songs.
114. The determination of whether there is a primary religious effect is not simply
a balancing test to determine if the secular effect is greater than the religious
effect. The Supreme Court has indicated what the proper application of the
"primary effect" test is:
Our cases simply do not support the notion that a law found to have a
"primary" effect to promote some legitimate end under the State's
police power is immune from further examination to ascertain
whether it also has the direct and immediate effect of advancing religion .... Sunday closing laws were upheld, not because their effect
was, first, to promote the legitimate interest in a universal day of rest
and recreation and only secondarily to assist religious interests; instead, approval flowed from the finding, based upon a close examination of the history of such laws, that they had only a remote and
incidentaleffect advantageous to religiousinstitutions.
Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 783 n.39
(1973) (emphasis added). Although holiday programs may have the primary
effect of advancing education, their advance of religious devotion may be
much more than remote and incidental.
115. See Note, N.Y.U. L. REv. supra note 6, at 1125.
116. An example of this type of detrimental impact was related by Seymour
Graubard to the committee which considered one of the many proposed
prayer amendments in Congress. He testified that
my wife who went to public school ... has told me of how in her
elementary schools she was one of two Jewish children in her class,
of how it was generally the case that Christmas would be a time of
religious ceremony in the class. She felt out of sorts, out of place,
and felt separated from the rest of her students by the need that she
felt of not participating in an out-and-out religious ceremony.
W. DOUGLAS, supra note 8, at 12. See also Choper, supranote 8, at 412; Note,
N.Y.U. L. REV. supra note 6, at 1125; note 114 supra.
1980]
ESTABLISHMENT CLAUSE
4. Alternatives
Even if the singing of religious hymns in the public schools
does have an important educational effect, in close cases where
there is also a potentially significant religious effect, a public
school should be required to minimize the religious impact. In his
dissenting opinion, Judge McMillian pointed out that:
Viewed in context, I do not think Christmas assemblies can accurately be
described as merely art festivals or choral concerts. These assemblies
contain material that is unmistakably Christmas-oriented and are held
only during the Christmas season, not in October and April... Christmas carols presented as a musicform could117
be performed at any time during the school year, not just at Christmas.
If the educational benefits of singing Christmas hymns are significant enough to warrant retaining them despite the potential religious effects, school boards would be prudent to program these
"educational" assemblies in April or October. If there is something compelling about having the assemblies during the holiday
season itself, the argument that the assemblies are actually observances intended to celebrate and have a religious effect becomes more persuasive. Certainly the educational goals of the
holiday programs could be achieved at anytime during the year.
Holding them "off season" would arguably be less likely to produce
a primary religious effect. Instead of singing songs during the celebration of a holiday season, students would be taught about a particular holiday or even about all religious holidays in one unit.
Such a practice would not preclude the celebration of the purely
secular aspects of each holiday at the time of its normal observance, i.e., Santa Claus in December and the Easter Bunny in
April.
Although this would probably not be a significant change for
those children who would fully participate anyway, it could have
an impact on those students who in the past have felt compelled to
decline participation. If all religious hymns were sung in one unit,
it is less likely that any one student-whether Jewish, Christian,
atheist or agnostic-would feel alienated. Even if he did not participate in all of the songs, he would most likely participate in some
of them. If a student felt that he could not participate in any of the
songs, his alienation would be limited to the unit on religious
hymns and would not extend throughout the year to every celebration allowed under the rules. In addition, it is also less likely that
the school would be seen as advocating a particular religious belief
in the eyes of the children.
117. Florey v. Sioux Falls School Dist., 619 F.2d at 1327 (McMillian, J., dissenting)
(emphasis in original).
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5. Religious Symbols
The propriety of rule 4, which allowed the display of religious
symbols, also depends on one's notion of whether their effect
would be primarly religious or educational." 8 Both the age of the
children and the time allowed for their display are crucial factors.
Since the rule does not require both a religious and secular element to the symbols, the possibility for a religious effect may be
just as great with symbols as it is with the songs. On the other
hand, the viewing of a symbol may be a less emotional experience
than the singing of a song, especially for young children. The fact
that the symbols do not become permanent fixtures in the classroom also seems to strengthen the school board's argument that
their effect is primarily educational. Again, when there is a potential for a significant religious effect on children it is arguably preferable to minimize this effect by displaying the symbols at a time
other than the applicable holiday. It is doubtful that any educational benefit would be lost by so doing.
As with all the rules, the propriety of displaying religious symbols in the classroom will depend on the proper implementation of
the rules. Since supervision of some sort is presumably necessary
to insure that the rules are carried out the danger of excessive entanglement is raised.
C.
Excessive Entanglement Test
"Some members of the [Supreme] Court have criticized the
anti-entanglement requirement as a superfluous statement of the
secular effect rule, which requires an examination of much the
118. Although there is some case law holding that the placement of religious symbols on public property is unconstitutional, see, e.g., Lowe v. City of Eugene,
254 Or. 518, 451 P.2d 117 (1969), cert. denied, 397 U.S. 1042 (1970), many courts
have allowed the permanent display of crosses and other religious monuments. Decisions allowing the display of religious symbols are cited in Eugene Sand &Gravel, Inc. v. City of Eugene, 276 Or. 1007, 558 P.2d 338 (1976), in
which the court held that the display of a cross on public property as a war
memorial did not violate the establishment clause. See Allen v. Morton, 495
F.2d 65 (D.C. Cir. 1973); Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th
Cir. 1973); Paul v. Dade County, 202 So. 2d 833 (Fla. Dist. Ct. App.), cert. denied, 207 So. 2d 690 (Fla. 1967), cert. denied, 390 U.S. 1041 (1968); Singlemann
v. Morrison, 57 So. 2d 238 (La. Ct. App.), cert. denied, 57 So. 2d 238 (La. 1952);
Opinions of the Justices, 108 N.H. 97, 228 A.2d 161 (1967); Lawrence v.
Buchmueller, 40 Misc. 2d 300, 243 N.Y.S.2d 87 (Sup. Ct. Westchester County
1963); Baer v. Komorgan, 14 Misc. 2d 1015, 181 N.Y.S. 2d 230 (Sup. Ct. Westchester County 1958); Meyer v. Oklahoma City, 496 P.2d 789 (Okla.), cert. denied, 409 U.S. 980 (1972). Lawrence, Baer and Opinions of the Justices
involve religious symbols placed in public schools. This issue has never been
resolved by the United States Supreme Court. Florey is different from all of
these cases in that the religious symbols in question are only temporarily
placed in the classroom.
1980]
ESTABLISHMENT CLAUSE
same body of facts through a different lens."" 9 It seems to involve
the "Madisonian concern that secular and religious authorities not
interfere excessively with one another's respective spheres of
choice and influence, lest both government and religion be corrupted."'] 20 The Supreme Court has argued that excessive government involvement with religion should be avoided because of the
"'potential for political divisiveness related to religious belief and
practice.' ,121 One commentator has suggested that the value protected by eliminating divisiveness which might result from entanglement is a "fundamental personal right not to be a part of a
community whose official organs endorse religious views
that
22
might be fundamentally inimical to one's deepest beliefs."'
In its opinion, the majority cast doubt on the applicability of
this test in Florey, since it normally has been applied in situations
involving state aid to parochial schools. 123 Even so, the facts of
119. L. TRmE, supra note 24, at 865 (footnotes omitted). But see Freund, Public
Aid to Parochial Schools, 82 HARv. L REV. 1680, 1684 (1969); Note, The
Supreme Court 1970 Term, 85 HARv. L REV. 1, 172-73 (1971).
120. L. TRIfE, supra note 24, at 865. In Lemon, the Court held that "we cannot
ignore here the danger that pervasive modem governmental power will ultimately intrude on religion and thus conflict with the Religion clauses."
Lemon v. Kurtzman, 403 U.S. 602, 620 (1971).
121. L. TRME, supra note 24, at 868. The D.C. Circuit Court of Appeals noted that
Lemon also recognized a second branch of the entanglement test, the
possibility that such Governmental action will result in intensified
'[p]olitical fragmentation and divisiveness on religious lines' because of 'the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow.'
...
The entanglement test is thus concerned with both administrative and political ramifications of Government involvement, and is
geared to minimize interference, monitoring, and any divisive impact
among the people.
Allen v. Morton, 495 F.2d 65, 74 (D.C. Cir. 1973) (citation omitted). In addition
Justice Douglas has noted that "[t]he First Amendment ... [was] designed
Separation of Church and
to keep religion from being a devisive force ....
State is necessary for a pluralistic society." W. DouGLAS, supra note 8, at 49,
51-52.
122. L. TRIBE, supra note 24, at 869.
123. 619 F.2d at 1318. The language in Lemon might have left some doubt as to
whether the excessive entanglement clause is only applicable to religious institution cases or to all establishment clause challenges. The Court simply
stated that "[e]very analysis in this area must begin with consideration of
the cumulative criteria developed by the Court over many years [the threeprong test]." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added).
In fact, the excessive entanglement test has been applied most rigorously in
situations involving the states financial support of church-related schools.
See, e.g., Meek v. Pittenger, 421 U.S. 349 (1975); Sloan v. Lemon, 413 U.S. 825
(1973); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756
(1973); Tilton v. Richardson, 413 U.S. 672 (1971). Nyquist and Sloan involved
state attempts to reimburse parents for a portion of the tuition paid to educate their children in non-public schools. Both programs were invalidated for
advancing religion since the payments-made directly to the parents-bene-
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[Vol. 59:1143
Florey demonstrate the applicability of this third te~t to
nonparochial cases involving establishment clause challenges. Although it involves many of the same inquiries of the "effect" test, it
seems to focus on the potential problems which may arise when
agents of the state must determine
what does and does not consti124
tute a "religious activity".
Even though there is no church school in Florey, the public
school is involved in celebrating both religious and secular aspects
of holidays. 25 The dissent found not only that the test was applicable, but also that it rendered the rules unconstitutional. Judge
McAillian noted that "the rules call upon the school district to determine whether a given activity is religious."'1 26 As such, "'[the
secular public school system could become the focal point for the
competition of all religious beliefs [and non-belief]. '"127 When
only secular subjects are taught in the public schools there is little
124.
125.
126.
127.
fited non-public schools by making them more attractive to parents. In addition, the State was unable to guarantee that the aid would only benefit
secular functions. See J. NowAx, R. ROTUNDA & J. YOUNG, supra note 14, at
855. In Meeks, the Supreme Court invalidated a program which involved
loaning textbooks, secular instructional material and the services of public
school employees to non-public schools. Although the materials were "selfpolicing", the Court found an impermissible degree of aid to religion. Such
aid made the entire religious operation more viable. Id. at 856. In Tilton, the
Supreme Court invalidated part of a federal statute which allowed buildings
constructed at government expense to be used for religious purposes twenty
years after construction because this was seen as having "the effect of advancing religion." Tilton v. Richardson, 413 U.S. at 683. However, the excessive entanglement clause must be applied in all establishment clause
challenges. The Court has made clear that "to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, . . . second, must have a primary effect that neither advances
nor inhibits religion ....
and, third, must avoid excessive government entanglement with religion." Committee for Pub. Educ. & Religious Liberty v. Nyqulst, 413 U.S. 756, 773 (1973).
In Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973), the court noted that a case
challenging (on establishment clause grounds) the government's participation in a Christmas Pageant of Peace and its maintenance of a creche pursuant thereto, "does not fit well in the pigeonholes of past decisions" relative to
the excessive entanglement test. 'The test ... emanates from the principle
that Government involvement with religion should be kept to a necessary
minimum, and that there should be avoided not only the actual interference
but also the potential for and appearance of interference with religion." Id. at
75.
The court in Allen noted that in a first amendment challenge, the court must
consider "variables such as the degree of sectarianism in the institution or
event with which the Government is involved, the extent of the Government's
involvement, and the controls placed thereon." Id. at 72 (citation omitted)
(emphasis added).
Florey v. Sioux Falls School Dist., 619 F.2d at 1327 (McMillian, J., dissenting).
Id. at 1327 (citing Meltzer v. Board of Educ., 577 F.2d 311, 319 (5th Cir. 1978)
(Brown, C.J., dissenting)) (brackets in the original).
1980]
ESTABLISHMENT CLAUSE
1167
danger that a teacher will openly teach theology. However, in
Florey and other situations involving the observances of religious
holidays, there is a real possibility--even in the public schoolsthat teachers will either knowingly or unknowingly advance their
religious beliefs. 12 8 It is often difficult for "believers" to separate
their faith from their other beliefs. Thus, the state finds itself in
Florey and similar situations with the responsibility to survey the
religious belief from
teachers to insure that they "segregate 12their
9
their secular education responsibility."'
However, the greater potential problem with allowing holiday
observances in a community made up of diverse persuasions is
that the presence of the programs could precipitate a disrupting
debate over what is or is not primarily religious, secular, or both.
There are, in fact, case histories of communities in which there
have been controversies over this issue even before the Supreme
Court's prayer decisions. 130 It is not unlikely that as society becomes more diverse such controversies will proliferate and a decision like Florey, decided on the "facts", might have a different
result.
128. Justice Douglas pointed out in his concurring opinion in Lemon that "[we
deal not with evil teachers but with zealous ones who may use any opportunity to indoctrinate a class." Lemon v. Kurtzman, 403 U.S. 602, 635 (1971)
(Douglas, J., concurring). Although Douglas' comments concerned teachers
(some of whom were nuns) in a church operated school teaching secular subjects, a teacher in a public school might be just as zealous while instructing
children on the meaning of Christmas.
129. Lemon v. Kurtzman, 403 U.S. at 619. This is stretching the analysis of Lemon
from a situation in which the state would have to insure that teachers in religious schools did not use state funds to teach religious tenets to one in which
the state must insure that its own teachers do not force their own or community religious beliefs on their students. Although this is admittedly a "giant
leap," the presence of religious music and symbols in the classroom and the
performance of religious hymns in school assemblies could, in foreseeable
circumstances, have exactly the same impact on a child as education in a
church-sponsored school. The statute involved in Lemon was in fact similar
to that in Florey: that the courses which would receive state aid "shall not
include any subject matter expressing religious teaching, or the morals or
forms of worship of any sect." 403 U.S. at 637. (Douglas, J., concurring). Justice Douglas noted that "[t]he subtleties involved in applying this standard
are obvious. It places the State astride a sectarian school and gives it power
to dictate what is of is not secular, what is or is not religious." Id. It is arguable that the application of the standard in Florey ("music ... having reliif
gious themes or basis are permitted as part of the curriculum ...
presented in a prudent and objective manner and as a traditional part of the
cultural and religious heritage of the particular holiday", 619 F.2d at 1316) is
just as subtle.
130. See L. PFEFFER, supranote 8. Pfeffer recounts the controversies experienced
in New York, Massachusetts and New Jersey over the content of Christmas
programs in the schools in the late 1940s.
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VII.
[Vol. 59:1143
CONCLUSION
Florey demonstrates the continuing struggle to define the
proper relationship between church and state. Although the authors of the first amendment could not have foreseen the factual
settings of the religion clause controversies which have arisen in
the past two hundred years, they did recognize potential divisiveness and harm to both institutions resulting from too close an affiliation. This potential for conflict has become even more
threatening due to increased pluralism in American society. While
the elimination of Christmas hymns, traditional and untraditional,
from the public schools would almost certainly fan the flames of
public outcry kindled by the removal of prayer from secular institutions, such a result may ultimately be necessary to preserve the
values protected by the first amendment, including the right to attend public school without being subjected to conflicting religious
activities. As society grows, religious programs may encourage
tension between Christians, Jews, atheists and other religious
groups which today represent only a small minority of the population. 13 1 Hence, as communities diversify, it will become increasingly difficult to maintain that the use of Christian and Jewish
hymns, literature and symbols in holiday programs do not have a
religious purpose, primary effect or create an excessive entanglement with religion, particularly if a significant segment of the community objects to their use. Given the controversial nature of this
dispute, it is not likely that the Supreme Court will examine this
issue in the near future,132 although Florey may invite further attacks on rules concerning school celebrations of religious holidays
in other circuits.
Michael W. Homer '81
131. Justice Douglas pointed out after the prayer decisions that
[i]n time Moslems will control some of our school boards. In time
devout Moslems may want their prayers in our schools; and if Protestant sects can get their prayers past the barriers of the First Amendment, the same passage would be guaranteed for Moslems, as Islam
is one of the great religions of the world.
W. DOUGLAS, supra note 8, at 45. Justice Douglas also noted the religious
groups which have fought to keep prayer in the schools have changed depending on the century. Id. at 31. What is true for prayer is equally applicable to religious hymns in the schools.
132. Kurland has argued that the Court is sensitive to public opinion since its
"power is totally dependent upon the esteem in which it is held by the public." Kurland, supra note 4, at 178. He also discusses examples of the courts
yielding to public pressure in its decisions. Id. at 144-45.